Probate Shortcuts in Mississippi

The probate process can be long and drawn-out, costing your survivors time as well as money. Fortunately, Mississippi offers two probate shortcuts for "small estates." If the property you leave behind at your death is below a certain amount, Mississippi allows the property to be transferred more quickly and with less hassle. In other words, if your estate qualifies as "small," your loved ones may be able to use simplified probate procedures, or even skip probate entirely.

Collecting Property With a Small Estate Affidavit

Mississippi offers a procedure that allows inheritors to skip probate altogether. It's called an "affidavit of successor" or "small estate affidavit." To qualify, the estate (the property you own at death) must meet these requirements:

• the value of the estate doesn't exceed $75,000
• no application or petition for appointment of personal representative is pending or has been granted in any jurisdiction (so if a probate proceeding has already started, the estate probably won't qualify), and
• at least 30 days have elapsed since the death.

Miss. Code Ann. § 91-7-322. The affidavit can be used only by a "successor," which is defined as (1) a surviving spouse, (2) a child if there's no surviving spouse, (3) a grandchild if no spouse or child survives, or (4) a parent or sibling if none of the previously mentioned family members are living.

Additionally, the affidavit can be used only to collect personal property—in other words, not real estate.

Claiming Property With a Simple (Small Estate) Affidavit

Mississippi has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than a certain amount. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property -- for example, a bank where the deceased person had an account -- gets the affidavit and a copy of the death certificate, it releases the asset.

The out-of-court affidavit procedure is available in Mississippi if the total value of the estate (less liens and encumbrances) is $50,000 or less. The affidavit states that:

• the value of the entire estate is less than this amount
• that a personal representative has not been appointed, and
• that the inheritor is entitled to the asset (and why).

There is a 30-day waiting period to use this process. Miss. Code Ann. § 91-7-332.

There's another process for bank accounts, up to $12,500, if there is no will. The person claiming the money must sign a bond guaranteeing to pay any lawful debts of the deceased person to the extent of the withdrawal. Miss. Code Ann. § 81-14-383.

Simplified Probate Procedures

Mississippi has a simplified probate process for small estates. To use it, an executor files a written request with the local probate court asking to use the simplified procedure. The court may authorize the executor to distribute the assets without having to jump through the hoops of regular probate. You can use the simplified small estate process in Mississippi if the value of the estate is $500 or less. Miss. Code Ann. § 91-7-147.

Also, an inheritor may request a transfer of real property without formal probate if the deceased person:

• had a will
• owned $10,000 or less in personal property
• owned real property, and
• named who should inherit his or her real property in the will.

This process is called "muniment of title." The requesting inheritor, the surviving spouse, and the rest of the inheritors in the will must sign a petition under oath, stating that all known debts of the deceased person have been paid and the estate is under the value stated above. Miss. Code Ann. § 91-5-35.

For More Information

For help determining if an estate qualifies for one of these probate shortcuts, or handling an estate in general, see The Executor's Guide, by Mary Randolph (Nolo), or Estate Planning Basics, by Denis Clifford (Nolo).

For more on Mississippi estate planning issues, see our section on Mississippi Estate Planning.